Interstate Child Support Enforcement System: Juggernaut of Bureaucracy - Janelle T. Calhoun

• Publication year: 1995

Interstate Child Support Enforcement System: Juggernaut of Bureaucracy

I. Introduction

This Comment examines the crisis of child support in America. Throughout, statistics and facts are provided to demonstrate the gravity of the problem, the ensuing drain on national resources, and why corrective steps must be taken. First, the Comment explains the causes and scope of the problem, focusing on the crux of the dilemma: single mothers with inadequate incomes raising children while receiving no support from absent fathers. Next, it explores the history of the child support obligation, tracing legislative attempts to coerce payment. The Comment then explains the currently available remedies, how they are applied, and why they are inadequate. The Comment analyzes studies done by public and private groups and the resulting recommendations for reform of the system, closing with a look at proposed legislation currently before Congress.

A. The Scope of the Child Support Problem

With the national divorce rate skyrocketing and unwed motherhood common, more and more children are growing up in single parent households. By 1989, studies show that 42% of white babies born in America will live with a single parent by the time they reach eight years old and experience a major spell of poverty within that time. "Eighty-six percent of black babies born in America will live with a single parent before they reach eight years old . . . [and] will live in poverty most of that time."¹

Most often, it is the mother who retains custody of the children while the father sets up a separate residence.² Although the mother frequently remains in the marital dwelling, she also single-handedly assumes its accompanying expenses. Typically, the father makes more money than the mother and was the breadwinner for the family during the marriage.³

After the family breakup, the mother's financial responsibilities increase while her salary remains inadequate. Yet, the father's financial responsibilities decrease as he continues to receive his regular salary. In a majority of divorces, custodial mothers face a serious financial crisis while the noncustodial father's lifestyle improves markedly.⁴ A 1982 study found that in families with annual predivorce incomes of $40,000 or more, the divorced custodial mother and children must live at 48% of their previous income level while the noncustodial father has 200% of his former financial capacity.⁵

As a result, the poverty rate for single-parent families headed by the mother is nearly 50%.⁶ The majority of single mothers work full-time, earn no more than $18,000 a year, and receive little or no child support.⁷ Child support delinquency is one of the most important reasons why poverty in America has become "feminized."⁸ By 1981, women headed almost 50% of all the poor families in America.⁹

The government has attempted to deal with the problem by requiring the noncustodial father to pay the custodial mother a specified sum to contribute to the support of the couple's children. The theory underlying the child support order is that the noncustodial parent does not divorce the children and must continue to provide for their needs until they reach majority or become self supporting.¹⁰

Unfortunately, many noncustodial fathers fail to make their child support payments. Currently, the default rate is nearly 50% (compared to a default rate of only 3% for car loans).¹¹ When the father fails to pay, the mother often turns to the welfare system and becomes a burden on taxpayers.¹² Only 10% of all custodial parents receiving welfare also receive financial support from the noncustodial parent.¹³

B. The Fiscal Crisis

The scope of the problem has caused a fiscal crisis within the states and attracted national concern as the Clinton Administration grapples with burgeoning welfare budgets carved from an already overextended national economy. Recent studies show that more than one-fifth of America's children live in poverty, and for the last five years, welfare in the form of Aid to Families With Dependent Children ("AFDC")¹⁴ has increased dramatically.¹⁵

In 1975, approximately 8 million children received public assistance. Twenty years later, the number has jumped to nearly 10 million. In 1975, the federal government spent about $5 billion and the states spent about $4 billion to support these children. The figures have now risen to $12.7 billion in federal expenditures and $10.5 billion spent by the states. Yet the increasing cost of administering the programs has caused the average monthly payment to welfare families to drop from $600 in 1975 to $375 in 1994.¹⁶

The federal government estimates that 27 billion dollars in child support went uncollected in 1992.¹⁷ According to the U.S. Department of Health and Human Services, a substantial increase in child support collections could reduce AFDC payments by 25%.¹⁸

C. The Interstate Dilemma

The most difficult aspect of child support enforcement occurs when the custodial parent and the noncustodial parent live in different states. Statistics from the General Accounting Office ("GAO") demonstrate that children whose parents do not live in the same state receive significantly less support.¹⁹ Although three out of every ten child support cases are interstate, only $1 of every $10 collected nationwide comes from interstate cases.²⁰

Kris Elwood, president of the coordinating council for the Association for Children for Enforcement of Support ("ACES") says, "Interstate cases are nightmares. Often times the paperwork is not filled out correctly and it has to be sent back three or four times. While all this paperwork is going on, the child isn't receiving any support."²¹

Child support enforcement, which has traditionally been a state matter, has become national in scope because of the increasing mobility of American citizens. Many noncustodial parents move and change jobs frequently. Among cases handled by government enforcement agencies, the average length of employment for noncustodial parents is three months.²²

Interstate enforcement efforts are further frustrated by conflicting state regulations, confusing federal requirements, and overwhelming caseloads. The federal government has attempted to coordinate and assist the states in collecting delinquent child support payments but no effective system has been implemented to date.

II. History Of Child Support Legislation & Enforcement

A. The Basis of the Parental Support Obligation

The responsibility of both parents to support their offspring must be one of the first principles of natural law in any ordered society.²³ In 1899, Sir William Blackstone commented on the parental support duty:

The duty of the parents to provide for the maintenance of their children, is a principle of natural law . .. laid on them not only by nature herself but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they only gave their children life that they might afterwards see them perish.²⁴

The legal obligation to support minor children evolved in the United States from concepts of agency and necessaries doctrine.²⁵ Child support legislation and enforcement was originally a matter controlled entirely by the states. This resulted in a total of fifty four different systems (including states, territories, and the District of Columbia).²⁶

B. The Federal Government Gets Involved

1. Aid for Families with Dependent Children. The federal government got marginally involved in 1935 when it created AFDC as part of Title IV-A of the Social Security Act.²⁷ The original AFDC program (commonly known as "welfare'') sent federal money to the states to support children whose fathers had died or become disabled. The funds were also used to support children whose fathers had deserted the family.²⁸

The program's language establishes that these funds are "for the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each state to furnish financial assistance and rehabilitation ... to needy dependent children

____"²⁹ By the mid-1980's, almost 90% of children receiving AFDC benefits had a living parent who was absent from the home.³⁰

2. Federal Courts Modify Interstate Enforcement Procedures. Prior to 1950, procedural burdens to enforcement of a child support order pertaining to a noncustodial parent in another state often made it economically unfeasible for a custodial parent to pursue.³¹ In addition, a state court's difficulty in obtaining personal jurisdiction over the absent parent made enforcement of a support order almost impossible.³²

After World War II, the federal courts began to recognize the increasing mobility of the population. This led to a relaxation of constitutional barriers to a state court's jurisdiction over a non-resident. The landmark case of International Shoe Co. v. State of Washington³³ allowed a state to exercise personal jurisdiction over a non-resident if there was sufficient contact between the state and the non-resident, if the non-resident received adequate notice of the proceeding, and if traditional notions of justice and fair play were not offended.³⁴

Every state now has some form of "long arm statute" designed to reach out and exercise jurisdiction over an absent noncustodial parent who fails to make court ordered child support payments.³⁵ Although the long arm statutes differ from state to state, there are three basic types:

1. Statutes which list factors which will subject a person to personal jurisdiction of its courts, such as:

a. transacting of business in state

b. contracting to supply goods/services in the state

c. committing tort in the state

d. having interest in real property in the state

e. engaging in sexual intercourse which may result in conception of child in state;³⁶

2. Statutes which exercise personal jurisdiction to the full extent permitted by the Due Process Clause of the...